‘Duties of care’ to the careless and criminal

Having served time for the manslaughter of a burglar, Tony Martin is now free to focus on a civil claim that is being brought by the dead man’s accomplice.

In June 2003, a judge in Nottingham, UK, ruled that Brendon Fearon was entitled to sue Martin for damages arising from the leg injury he suffered while burgling Martin’s farmhouse. Fearon claims that his ability to work, enjoy sex and do martial arts has suffered as a result of this injury (1).

It seems unlikely that criminals of a previous generation would have had the gall to sue for injuries sustained while burgling somebody’s home. In 1976, Lord Denning, then Master of the Rolls, considered whether a burglar’s estate could sue a householder who had been convicted of the burglar’s manslaughter. He suggested that such a claim would fail on the grounds that a person should not be permitted to benefit from his own criminal conduct (2). The legal principle here is ex turpi causa, meaning that no right to sue may be based on an immoral or illegal act.

But Lord Denning’s hypothetical view has not survived the ‘blame and claim’ culture of the past few years. In 1995, the Court of Appeal allowed a burglar, Mark Revill, to recover damages from the owner of an allotment shed, William Newbery. Seventy-six-year-old Newbery had been in the habit of sleeping in this shed in order to protect his property from the frequent attentions of vandals and thieves. Newbery had only intended to frighten the burglar away, but the court found that he owed the burglar a duty of care, and that he had breached this duty by firing a shotgun in the dark without knowing whether there was anyone in front of it (3).

Since the Revill case, other criminals have also sought compensation. In July 2001, the Court of Appeal considered an appeal by Carlo Vellino against the High Court’s dismissal of his claim against the Greater Manchester Police. During a lengthy criminal career Vellino had frequently sought to evade arrest – a criminal offence – by jumping from the windows of his second floor flat. One evening his escape by the traditional method left him a tetraplegic. He sued the police for standing by and allowing him to jump from the flat.

One might have thought that this appeal would have been dismissed in a unanimous and robust fashion. Dismissed it was, but one of the three judges, Lord Justice Sedley, found in favour of Vellino – on the grounds that arresting officers owed a prisoner a duty of care not to afford him a temptation and an opportunity of escape, when there was a known risk that the prisoner would do himself real harm. He found that the arresting officers had breached this duty (4).

Fearon’s claim against Tony Martin, like Revill’s claim before it, sparked critical press coverage. Burglars, of course, are not going to attract a sympathetic response. So it was not surprising when home secretary David Blunkett was reported as seeking to ban burglars who are injured while committing a crime from suing their victims (5).

But the readiness of courts to impose duties of care has not just benefited criminals. Take the case of Christopher Jebson, a soldier, who was seriously injured after an evening’s drinking, when he fell into the road while trying to climb on to the canvas roof of a lorry from its tailgate.

The transport for Jebson and another 20 soldiers had been provided by the Ministry of Defence (MoD); the Court of Appeal concluded that having provided the transport, the MoD was under a duty to provide a package of measures to ensure that the off-duty soldiers were reasonably safe. Given the size of the gap above the tailgate, the inability of the driver to see what was happening and the absence of somebody to supervise, it was decided that the MoD had breached this duty of care (6).

The judgements given in cases such as Revill, Vellino and Jebson show the extent to which traditional judicial attitudes have changed. In the past, a variety of legal doctrines would have been used to defeat negligence claims from people relying upon their own irresponsible conduct (7). The means by which such claims were defeated made interesting essay questions for law students – but what informed them all was a sense that negligence law should enhance personal responsibility.

Clearly, it would be irresponsible for workmen to dig a hole in the pavement without fencing it in. If a person fell down an unfenced hole and suffered injury then a claim for negligence would be based on the workmen’s irresponsible conduct. But in recent years, negligence law has developed as a means of excusing one’s own failings.

The burglar no longer accepts the risk of being injured by a homeowner. The man evading police arrest no longer accepts that he was author of his own misfortune when jumping from a second floor window. And the inebriated soldier who falls off a lorry while trying to climb on to its canvas roof obtains a ruling that he and his comrades should have been supervised – like children on a school outing.

It is easy to blame the lawyers, for advancing creative arguments in support of these claims, and the Legal Services Commission (the LSC, formerly known as the Legal Aid Board) for funding them. But these are the wrong targets since, as numerous cases show, creative claims sometimes succeed. Indeed, any lawyers who failed to adapt to the blame-and-claim culture would be failing in their professional duties to their clients – and the LSC would be denying funding on an improper basis.

The ever-expanding boundaries of negligence have been sanctioned by judges. But in wider society there has been little serious political debate about the growth in compensation culture, and even less effort to curb it. In a parliamentary democracy it is parliament that is ultimately responsible for making and reforming laws, yet no government in recent years has introduced a law to restrict blaming and claiming.

A few months after Blunkett announced that he would seek to outlaw claims by burglars, Home Office officials were conceding that it was proving difficult to frame a law that would protect someone such as Martin, who was convicted for using unreasonable force (8). The government’s reform of the law, as an amendment to the Criminal Justice Bill, has still not been published.

But why stop at easy targets like burglars? Why not reform negligence law across the board, in order to make personal responsibility its central feature?